Law of the National DNA Database System

Objective. The National DNA Database System is hereby created, which shall be administered by the Public Ministry through the General Directorate of Forensic Medicine, which shall have as its objective the systematization and storage of the genetic information that is obtained and generated in accordance with the cases stipulated in this Law or any other, with the aim of entering the DNA profiles into the DNA databases that comprise it and comparing them with all DNA profiles to generate possible matches. To facilitate the clarification of facts subject to a criminal, civil or humanitarian investigation for the identification of missing persons and human remains.

Purpose. The databases administered by the Public Ministry through the General Directorate of Forensic Medicine shall have the following purposes:

• 1)

  To store, classify and compare the results of the analysis of DNA profiles obtained from samples, clues, evidence, crime scenes, living or deceased persons within the context of expert examination for purposes of criminal, civil and humanitarian identification;

• 2)

  To support the competent authorities in criminal investigation;

• 3)

  At the request of an authorized competent body, to provide information for purposes of identification of corpses and human remains in mass disasters, migration, human trafficking, among others;

• 4)

  At the request of an authorized competent body, to provide information for purposes of identification of corpses and human remains of minors in adoptions, missing persons and their families;

• 5)

  At the request of an authorized competent body, to provide information for purposes of identification of corpses and human remains of minors related to crimes of organ or human trafficking;

• 6)

  To maintain a record of DNA profiles for purposes of criminal investigation in accordance with the categories established for such purpose;

• 7)

  To maintain a record of DNA profiles that individuals voluntarily authorize, to participate in population and medical studies;

• 8)

  To maintain a record of DNA profiles of members of the Police Corps, Military Police, Police Investigation Directorate (DPI), General Directorate of Forensic Medicine, Technical Criminal Investigation Agency (ATIC), Anti-Drug Trafficking Directorate (DLCN), any investigative entity authorized by Law for criminal investigation and others who participate in tasks related to crime scenes, sample handling, clues, evidence and any other forensic investigation work; and,

• 9)

  To maintain a record of DNA profiles of laboratory analysts in serology and genetics to monitor cross-contamination.

Principles. All actions of the General Directorate of Forensic Medicine of the Public Ministry with respect to this law shall be governed by the following principles:

• 1)

  Confidentiality and Custody: Every person who intervenes in the taking of a sample, obtaining evidence, determination of DNA profile, genetic fingerprints and storage of genetic information shall maintain the confidentiality of the background information and the integrity of the chain of custody;

• 2)

  Confidentiality: The information contained in the DNA databases may only be directly consulted by the person or authority that is legally authorized to use the information and in the cases established by this law;

• 3)

  Non-Discrimination: Under no circumstance may the National DNA Database System constitute itself as a source of discrimination, stigmatization, violation of the dignity, privacy, confidentiality or honor of any person;

• 4)

  Good Faith: One may not pursue one's own interests or those of others, but rather acts in representation of society and the State;

• 5)

  Data Privacy: The privacy of the interested persons and the confidentiality of the information concerning them should be respected. To the greatest extent possible, such information should not be used or disclosed for purposes other than those that determined its collection or for which consent was obtained, in accordance with international law, particularly that relating to human rights; and,

• 6)

  Suitability: It refers to the conduct of the public servant with a technical, legal and moral attitude in the performance of his or her duties, which is an essential condition for access to and exercise of public office.

Definitions. For purposes of this Law, the following shall be understood as:

• 1)

  DNA: Also known as Deoxyribonucleic Acid, which is the chemical name of the molecule that contains genetic information in all living beings.

• 2)

  Match: After comparing DNA profiles, a qualitative observation of equal characteristics, whether partial or total between DNA profiles, as a result of a comparison or a search in a DNA Database.

• 3)

  Informed Consent: A specific, prior and express permission that a person gives freely for their genetic data to be collected, treated, used and preserved in accordance with the purpose for which they were obtained.

• 4)

  Voluntary Donation: Any person, whether a minor with authorization from their parents or the persons who have guardianship and custody, may go to the Directorate of Forensic Medicine to give their voluntary DNA sample to be filed in the DNA Databases, with their informed consent.

• 5)

  Biological Sample: Any human fluid or tissue, liquid or solid, from which DNA can be obtained.

• 6)

  Questioned Biological Sample: Any human biological sample whose origin cannot be attributed to a person or is unknown. These may be biological samples collected as evidence.

• 7)

  Undisputed or Reference Biological Sample: Any human biological sample attributable to a person whose identity is known. These may be samples taken from suspects, victims, relatives of missing persons or their personal belongings, volunteers, among others.

• 8)

  DNA Profile: An alphanumeric personal record prepared exclusively from polymorphic genetic information in the population and that provides only identifying information; whose combination is distinct and unique with respect to the information of other human beings. Its singularity justifies its recording and use for the identification and individualization of the person to whom it belongs.

• 9)

  National DNA Database System: A system for the storage and organization of samples and DNA profiles collected and structured in the different databases and electronic files.

• 10)

  Unit of Action of the Public Ministry: The Public Ministry is unique in the national territory and its ownership corresponds exclusively to the Attorney General of the Republic, and the officials and servants must exercise their activity in the jurisdiction and competencies assigned and outside this by special assignments, having to act at all times under strict compliance with the principles of unity of action and hierarchical dependency, which shall be guaranteed at all times through the responsible actions of the General Directorate of Forensic Medicine in its entire structure.

• 11)

  Bioethics: Bioethics is the systematic study of human conduct in the fields of biological sciences and health care, insofar as such conduct is analyzed in the light of moral principles and values.

• 12)

  Cybersecurity: Also known as digital security, it is the practice of protecting important systems and confidential information from digital attacks.

• 13)

  Privacy: It is the protection of personal data against those who should not have access to it, and the capacity of users to determine who can access their personal information.

• 14)

  Database: A program capable of storing a large amount of related and structured data, which can be consulted quickly according to the selective characteristics desired.

• 15)

  Traceability: The trajectory of a product or products along the supply chain at a given moment, through certain tools.

Recognized and Authorized Scientific Methods. The scientific methods of extraction and analysis of DNA recognized worldwide by the scientific community may be used.

Use. The results of DNA tests shall be used:

• 1)

  For the development of the forensic DNA databases, administered by the General Directorate of Forensic Medicine;

• 2)

  To support research related to the identification and development of a protocol or regulation of forensic analytical methods for DNA analysis;

• 3)

  To assist in the recovery or identification of human remains in criminal investigations, mass disasters, migration and other civil and humanitarian purposes;

• 4)

  In criminal proceedings, by order of the prosecutor or judge in accordance with the Criminal Procedural Code;

• 5)

  In filiation proceedings, by order of the competent judge; and,

• 6)

  In other legal proceedings that, by their nature, so require.

The use of the results of DNA tests is prohibited for:

• 1)

  The purposes of execution of insurance contracts or their effects;

• 2)

  Projects for profit purposes in general or for sale to third parties;

• 3)

  Credit analysis, pensions, disabilities or other associated purposes; and,

• 4)

  Training databases for artificial intelligence.

DNA Databases. The National DNA Database System shall be formed as follows:

• 1)

  Criminal Databases: It is comprised of DNA profiles whose identification is of legal-criminal interest, allowing for systematic automatic comparison of DNA profiles, which is divided as follows:

  • a)

    Convicted Persons: Shall contain the DNA profiles of persons who have been convicted in a criminal proceeding by final judgment for any of the offenses listed in Article 13 of this law;

  • b)

    Voluntary Contributors: Shall contain the DNA profiles of any person who requests or voluntarily accepts to have samples taken to obtain their DNA profile, which may be used in the context of an ongoing criminal investigation, in accordance with the informed consent of that person;

  • c)

    Suspects: Shall contain the DNA profiles of those who have been charged with any of the offenses listed in Article 13 of this law;

  • d)

    Victims: Shall contain the DNA profiles of the victims of a crime, determined in the course of a criminal proceeding. The DNA profiles of victims may only be used for purposes of exclusion from the commission of a crime. They may not be used to link a victim as the author of a crime;

  • e)

    Evidence and Background: Shall contain the DNA profiles that have been obtained in the course of a criminal investigation and that correspond to unidentified persons; and, f) Human Remains: Shall contain the DNA profiles of unidentified human remains.

• 2)

  Civil and Humanitarian Databases: It is comprised of DNA profiles and has as its objective the identification of corpses and bone remains of unknown origin for humanitarian purposes and of persons who have missing family members, which allows for systematic automatic comparison of DNA profiles and in cases of filiation to determine with certainty the relationship, which are divided as follows:

  • a)

    Missing Persons: Shall contain the DNA profile from a missing person or belongings of a missing person;

  • b)

    Human Remains: Shall contain the DNA profiles of unidentified human remains;

  • c)

    Relatives of Missing Persons or Identification of Human Remains: Shall contain the DNA profiles of persons who have a missing or lost family member, who voluntarily accept to donate a biological sample that may be useful for their identification. The profiles of relatives of missing persons shall be collected through informed consent;

  • d)

    Voluntary Contributors: Shall contain the genetic profiles of any person who requests or voluntarily accepts to have samples taken to obtain their genetic profile, which may be used in the context of an ongoing humanitarian investigation, in accordance with the informed consent of that person; and, e) Filiation: Shall contain the DNA profiles of minors and persons to determine with certainty the biological relationship between ascendants and descendants in accordance with the Special Law for Responsible Motherhood and Paternity.

• 3)

  Quality Control Database: It is comprised of DNA profiles of officials who participate in forensic and criminal investigations to monitor cross-contamination:

  • a)

    Officials Who Participate in Forensic Investigation: Shall contain the genetic profiles of officials who participate in the taking and processing of DNA, collection of evidence at the crime scene and any other stage of DNA processing, as part of the chain of custody; with the aim of comparing categories of genetic profiles to identify possible DNA contamination when necessary;

  • b)

    Officials Who Participate in Criminal Investigation: Shall contain the genetic profiles of officials who engage in criminal investigation activities, such as members of the police corps, military police, Police Investigation Directorate (DPI), Technical Criminal Investigation Agency (ATIC), Anti-Drug Trafficking Directorate (DLCN) and any investigative entity authorized by Law to conduct criminal investigations. DNA samples and DNA profiles resulting from these samples collected for purposes of civil and humanitarian identification may not be used for purposes of criminal identification or investigation and/or be compared with the DNA database for purposes of criminal investigation, except in cases of unidentified human remains or when the informed consent of a voluntary contributor authorizes it.

Collection of Biological Sample. The collection of the undisputed or reference DNA biological sample shall preferably be done through the oral swab procedure. This collection of the biological sample shall be practiced by personnel duly trained in the taking of samples by oral swab. The collection of the questioned DNA biological sample shall be practiced by medical professionals, healthcare professionals, laboratory technicians or microbiologists duly trained, as the case may be, using any method approved by the scientific community.

Collection of Biological Sample and Incorporation of DNA Profile of Victims. The incorporation of the genetic fingerprint of the victim shall be ordered by the prosecutor of the case after obtaining informed consent, and the forensic expert shall inform the victim of their rights, purpose and objective of the incorporation of their genetic profile in the genetic database of victims. In the event that the victim does not give their authorization, the forensic expert shall refrain from incorporating it into the corresponding database.

Collection of Biological Sample and Incorporation of DNA Profile of Suspects. The collection of the biological sample of persons charged with any of the offenses listed in Article 13 shall be performed immediately during the preliminary investigation in the investigative and prosecution preparatory stage, and shall subsequently be validated by the competent judge in the first hearing for arraignment, and a genetic profile shall be generated from this biological sample and incorporated into the National DNA Database System.

Collection of Biological Sample and Incorporation of DNA Profile of Convicted Persons. When by final judgment a suspect is convicted of any of the offenses provided for in Article 13 of this Law, whose collection of the biological sample and incorporation of the DNA profile has been determined during the judicial proceeding, the judge shall order in the final judgment that the General Directorate of Forensic Medicine proceed to include the DNA profile in the database of convicted persons, removing it from the database of suspects. If the biological sample has not been collected and the DNA profile of the suspect has not been incorporated during the criminal proceeding, in the sentencing judgment, the competent judge ex officio or at the request of the Public Ministry shall order the performance of the collection of the biological sample and the incorporation of the DNA profile generated from this sample into the database of DNA of convicted persons. The collection of the biological sample and the incorporation of the DNA profile of all persons serving a sentence in a correctional facility for any of the offenses listed in Article 13 shall be carried out at the time this law enters into effect.

DNA Profile of Suspects and Convicted Persons. During the criminal proceeding, the prosecutor assigned to the case shall immediately notify the General Directorate of Forensic Medicine so that it may proceed to include the DNA profile in the National DNA Database System of persons who have been charged with or convicted of crimes against life, freedom, sexual indemnity and exploitation, human dignity, abandonment of minors and persons with disabilities, drug trafficking, organized crime, crimes against humanity, genocide, war crimes, illegal organ trafficking and genetic manipulation.

Collection of Biological Sample and Incorporation of DNA Profile Obtained as Evidence and Background. The genetic fingerprints that have been obtained in the course of a criminal investigation and that correspond to unidentified persons shall be preserved and entered automatically.

Collection of Biological Sample and Incorporation of DNA Profile Obtained from Human Remains. The DNA profiles that have resulted from the collection of biological samples from unidentified human remains shall be preserved and entered automatically.

Collection of Biological Sample and Incorporation of DNA Profile of Relatives of Missing Persons or Identification of Human Remains. The DNA profiles of relatives of missing persons who voluntarily donate a biological sample that may be useful for the identification of human remains or identification of missing persons shall be preserved and entered automatically.

Automatic Entry and Search. Upon completion of the analysis of a DNA sample in accordance with the provisions of this law, that DNA profile shall be entered and an automatic search shall be performed in the appropriate database of the National DNA Database System.

Elimination of DNA Profiles from Criminal Databases. The DNA profiles contained in the Criminal Databases shall be eliminated by the General Directorate of Forensic Medicine with prior notification and authorization of the General Directorate of the Office of the Prosecutor in the following cases:

• 1)

  When by final judgment a suspect is convicted of any of the offenses provided for in Article 13 of this law and whose DNA profile has been determined during the judicial proceeding, his or her DNA profile shall be eliminated from the database of suspects. The DNA profile shall be automatically included in the database of convicted persons;

• 2)

  Once the respective criminal proceeding is terminated, whether by acquittal judgment or by the concurrence of exculpatory causes due to lack of criminal responsibility or culpability, unless ordered otherwise;

• 3)

  Likewise, it shall proceed at the request of the suspect, when they accredit the end of the proceeding, through certification issued by the competent court. In the case of victims, the General Directorate of Forensic Medicine may retain the DNA profile of victims for an indefinite period for purposes of continuing the investigation, with the victim reserving the right to request the elimination of their DNA profile; and,

• 4)

  When a definitive dismissal has been issued or an acquittal judgment for causes other than those mentioned in paragraph 2, once such resolutions are final. In cases of provisional dismissal, the DNA profile shall not be eliminated until the proceeding is completely closed through a definitive dismissal or final conviction sentence. In cases of provisional dismissal, the DNA profile shall not be eliminated until the process is completely closed by definitive dismissal or final conviction judgment.

Elimination of DNA Profiles from Civil and Humanitarian Databases. The DNA profiles contained in the Civil and Humanitarian Databases shall be eliminated by the Directorate of Forensic Medicine with prior notification and authorization of the Director of Forensic Medicine in the following cases:

• 1)

  Persons with investigation for missing persons report, once it is notified that they have been located or have died, shall proceed ex officio to the elimination of the undisputed samples;

• 2)

  In the event that the DNA profiles contained in the databases of human remains with the status of unknown, identified but unclaimed, or of references to determine biological kinship, shall be eliminated ex officio once thirty (30) years have elapsed from the date of their incorporation into them; and,

• 3)

  Persons who have voluntarily given their DNA samples may request at any time the elimination of their profile from the National DNA Database System, and the General Directorate of Forensic Medicine shall immediately eliminate these profiles.

Elimination of DNA Profiles from Quality Control Databases. The DNA profiles contained in the Quality Control Databases shall be eliminated by the General Directorate of Forensic Medicine with prior notification and authorization of the Director of Forensic Medicine when the officials who participate in the forensic investigation cease their positions or functions, and shall be eliminated after five (5) years from the cessation of their functions through a request from the interested party, accrediting the cessation of their functions and position.

Elimination and Re-entry of DNA Profiles. Of the elimination and re-entry of the background information covered in Chapter Five of this law, written and electronic records shall be kept by the expert in charge. Such record shall contain the data that allow identification of the genetic fingerprints in question, as well as communication of the end of the proceeding, if applicable. The experts who, being required to proceed with the elimination or re-entry of the background information from the records, fail to do so or do so belatedly, shall incur in administrative responsibility established in the Public Ministry Career Statute.

Conservation and Destruction of Biological Material in Criminal Investigations. DNA samples related to unsolved cases shall be preserved in accordance with special regulations and protocols for biological material duly approved by the Attorney General of the Republic, to be used in the event that new evidence emerges for the clarification of facts constituting a crime. Once the expert examination has been completed, the Serology and Genetics Laboratory shall proceed to the destruction of the biological material that has been subject to a DNA examination in accordance with the special regulation of this law and special protocols. When the obtaining of biological material has a qualification as technically unrepeatable, the General Directorate of Forensic Medicine shall order the conservation of a part for up to thirty (30) years.

Conservation and Destruction of Biological Material in Civil and Humanitarian Investigations. Once a DNA profile has been generated from a biological sample collected for purposes of civil and humanitarian investigation, the Serology and Genetics Laboratory shall automatically proceed to the destruction of the biological material that has been subject to a DNA examination in accordance with the special regulation of this law and special protocols.

Record or Minutes. The General Directorate of Forensic Medicine through its experts in charge of the National DNA Database System shall keep a record of the samples entered, destroyed and preserved; therefore, the expert in charge of the examination shall prepare a record containing the data that allowed identification of the samples, the reasons that in the specific case justified their conservation, destruction and other data that are considered relevant. Experts who, being required to proceed with the entry, destruction or conservation of biological material, fail to do so shall incur administrative responsibility, without prejudice to their criminal and civil liability as appropriate.

Disclosure and Improper Use of Genetic Information. Those who, having intervened in any of the procedures regulated in this law by reason of their profession, allow access to the databases or DNA examinations to unauthorized persons, disclose them or use them improperly shall be sanctioned disciplinarily in accordance with the Public Ministry Career Statute and its special regulation, without prejudice to their criminal, civil and administrative liability.

Alteration, Elimination and Falsification of Genetic Information. He who alters or eliminates the biological samples that should be subject to DNA examination in accordance with this law and its regulation; falsifies the results of such examinations or the determination of the DNA profile, plants it at the crime scene or on the victim or fails to tell the truth in the expert report of examination or comparison, or adulterates its content, shall be classified as a serious fault constituting dismissal, without prejudice to the criminal, civil and administrative liability as appropriate.

Regarding Institutions and Governmental Bodies Requesting DNA Tests. Institutions and governmental bodies that request the taking of biological samples from persons to determine a DNA profile for purposes of civil and humanitarian investigation may collaborate with the Public Ministry through the General Directorate of Forensic Medicine with reagents or donations corresponding to the service of society.

Strengthening of DNA Databases. The Public Ministry may, through national and international agreements, exchange information contained in the National DNA Database System with national and international bodies that operate in the same field and with the same purposes of criminal, civil and/or humanitarian investigation. The foregoing corresponds solely to the exchange of information and not to access to the National DNA Database System. Access to and administration of the National DNA Database System is exclusive to the Public Ministry through the General Directorate of Forensic Medicine. No national or international body may have access to the National DNA Database System, which shall be administered exclusively by the Public Ministry through the General Directorate of Forensic Medicine.

Budget. The Department of State in the Office of Finance shall allocate to the Public Ministry the necessary budget for the creation, implementation and operation of the National DNA Database System; therefore, the Public Ministry shall conduct the corresponding studies of the budgetary impact, which shall be reflected in the budget. Additionally, the Public Ministry may receive donations, through national agreements and agreements with external cooperating partners, of different materials, equipment and supplies necessary for the proper functioning of the National DNA Database System.

Regulation. This Law, for purposes of its application, practice and management of DNA databases, shall create the corresponding regulation, as well as the special manuals and protocols relating to the protection of cybersecurity and biosecurity methods, within a period of ninety (90) days counted from its entry into effect, by the Public Ministry, National Autonomous University of Honduras, National Secretariat of Science, Technology and Innovation and National Registry of Persons.

This Decree shall enter into effect as of its publication in the Official Journal "La Gaceta".